The United States Supreme Court held in Ford v. Wainwright “that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” In Panetti v. Quarterman, the Court clarified that the execution of a person must have retributive value and that the Eighth Amendment is not satisfied by a test that asks merely whether a capital prisoner is aware that he faces the death penalty and recognizes that the penalty is connected to the crime, but the Court declined to announce a rule governing precisely how to determine if a mentally ill person is competent to be executed.

Execution should be barred when a person who has been sentenced to death lacks the capacity to make rational decisions about whether to pursue appeals, to assist his lawyer in post-conviction proceedings, or to appreciate the meaning or purpose of an impending execution. At least 13 percent of the people executed in the modern death-penalty era have been so-called “volunteers” who gave up their appeals, and researchers have found that more than 75 percent of death row inmates who “volunteer” for execution by waiving their appeals suffer from documented mental illness. Nonetheless, courts have failed to conduct meaningful competency evaluations that focus on the person’s understanding of the consequences of the decision as well as on his reasons for wanting to give up and on the rationality of his thinking and reasoning.

In 2002, the Supreme Court in Atkins v. Virginia held that the execution of people with intellectual disability (formerly known as mental retardation) violates the Eighth Amendment’s ban on cruel and unusual punishment. The Court reasoned that executing people with intellectual disability is inconsistent with the retributive and deterrent purposes of the death penalty because they are less culpable and less deterrable due to their “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”

In 2005, in striking down the death penalty for juveniles under 18 in Roper v. Simmons, the Court observed that “[r]etribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.” It also noted that executing juveniles had insufficient deterrent value because “[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.”

The same reasoning applies to people who have a mental illness, disorder, or disability that significantly impairs their cognitive or volitional functioning at the time of the offense. People who suffer from mental disorders that cause delusions, hallucinations, extremely disorganized thinking, or disruption of consciousness, memory, and perception of the environment, even if they do not meet the strict legal criteria to be found insane at the time of trial, clearly are not as culpable or deterrable as mentally healthy offenders. People who, because of psychosis, mistakenly perceived their victims to be threatening them with serious harm, and delusional offenders who believed that God had ordered them to commit the offense are among the mentally ill persons who would be exempted from capital punishment under this reasoning.

Two of Alabama’s last three executions involved mentally ill men with histories of suicide attempts who did not challenge their death sentences or executions. Christopher Johnson was executed on October 20, 2011, despite serious questions about his mental competency, the fairness of his trial, and the lack of meaningful appellate review after the Alabama Court of Criminal Appeals permitted him to waive the remainder of his appeals. In 2013, Alabama executed Andrew Lackey, a young man who suffered from mental illness his entire life. Mr. Lackey was sentenced to death when he was 22 years old, and he attempted suicide while on death row, saying that his “mind has started to break down.” After his failed suicide attempt, Mr. Lackey’s suffering led him to ask the State of Alabama to execute him. Despite extensive evidence of serious mental illness, Alabama courts refused to order an expert competency evaluation before executing Mr. Lackey on July 25, 2013.

EJI believes that states have the ability to humanely imprison and treat mentally ill citizens who have committed violent crimes without killing them. And a state certainly should require a mental health examination before permitting someone with a history like Mr. Lackey’s to give up his appeals. The acceptability of capital punishment cannot be answered by simply asking whether people deserve to die for the crimes they commit. Rather, we believe a threshold question is whether we deserve to kill if our system of justice does not reliably or responsibly judge people disadvantaged by mental illness.